Brief the following case including the issues, facts, procedural history, holding, and reasoning.

Citation: Perkins v. M&M Office Holdings, LLC, 303 Ga. App. 770, 695 S.E.2d 82 (2010).

Case:

Perkins v. M&M Office Holdings, LLC 303 Ga. App. 770 (Ga. CL App 2010) . 695 SE MRZ Decided Apr 15, 2010 A10A0627. Perkins are time-barred under the six year statute DECIDED APRIL 15, 2010. of limitation in OCGA $ 9-3-24. Accordingly, we reverse. Statute of limitation. Gwinnett Superior Court. Before Judge Davis Summary judgment is proper when there is no genuine issue of material fact and the Gray, Rust, St. Amand, Moffett Brieske, Michael 771 movant is entitled to judgment *771 as a D. St. Amand, Marcus W. Wisehart, Johnson Ward, matter of law. A de novo standard of Stanley E. Kreimer, Jo, for appellant. review applies to an appeal from a grant of summary judgment, and we view the Leonard &. Goldstein, for appellee. evidence, and all reasonable conclusions and inferences drawn from it, in the light MILLER, Chief Judge. most favorable to the nonmovant. MM Office Holdings, LLC ("MM") filed an action (Citations omitted.) Maroulis v. Integon Gren. Mus. against Michael Perkins and his company Corp., 226 Ga. App. 459 (1) ( 486 SE2d 684) National Gunite Construction Company (1997) ("National Gunite"), in the trial court, alleging that Perkins and National Gunite breached their So viewed, the record shows that, pursuant to the contractual obligations and warranties with respect Agreement, Perkins agreed to sell MM a to completion of improvements to an office commercial office building located at 2405 building MM purchased from Perkins under a Satellite Boulevard in Duluth and to complete December 23, 1998 Agreement of Purchase and certain improvements to the building. The Sale (the "Agreement"). The trial court denied Agreement concluded by stating: "IN WITNESS Perkins' second motion for summary judgment, WHEREOF, the parties have set their hands and which asserted that MM's claims were time- seals or caused duly authorized and incumbent barred, concluding that a series of amendments to officers to set their hands and affix the corporate the Agreement extending the closing date for the seal the date set forth by such party's name." purchase transaction converted the Agreement into Perkins and MM's manager, Jeffrey McCart, a contract under seal and the applicable 20-year signed the Agreement, but neither Perkins nor statute of limitation under OCCA $ 9-3-23 had not McCart affixed a seal or wrote the word "Seal" by yet expired. This Court finds that the amendments his signature. Perkins and McCart, on MM's to the Agreement did not place the Agreement behalf, subsequently executed five amendments to under seal and that MM's pending claims against the Agreement in order to extend the closing date for the purchase transaction. Each amendment concluded by stating "IN WITNESS WHEREOF,the parties have executed this Amendment under Perkings' second motion for summary judgment, seal on the day and year first above written, " and concluding that the amendments elevated the "SEAL" was printed by the signatories' names. status of the Agreement to a contract under seal Perkins ultimately conveyed title to the building to such that OCGA $ 9-3-23 applied. MM on November 24, 1999. 2 National Qusite did not join in the second It is weredisputed that the purties urekrstored motion for summary judgment that Perkins would subcontract the construction work required urkr the Perkins argues that the trial court erred in Agreement to National Curite. concluding that the subsequent amendments extending the closing date placed the Agreement On March 5, 2007, MM filed suit against Perkins under seal. We agree. and National Gunite, alleging that the defendants installed all of the building's windows backwards "The law is clear that to constitute a sealed and upside down and asserting claims for breach instrument, there must be both a recital in the body of the Agreement, breach of a separate one-year of the instrument of an intention to use a seal and repair warranty delivered by Perkins, and attorney the affixing of the seal or scroll after the fees and expenses pursuant to OCGA $ 13-6-11. signature." Punctuation omitted; emphasis According to MM's complaint, its action was supplied.) MoCalla v. Snickey, 213 Ga. App. 397, timely under OCGA $ 9-2-61 and renewed claims 398 ( 504 SE2d 269) (1998), citing Chastake v. 1. previously asserted in a prior action it commenced Moss Music Co., 83 Ga. App. 570 ( 64 SE2d 205) in Gwinnett County State Court but later (1951). In is undisputed that when the Agreement voluntarily dismissed after the prior action was was executed initially, it was not a contract under transferred to Dekalb County Superior Court. seal because, while it contained a recital of an Perkins and National Gunite moved for summary intention to use a seal, the word "Seal" did not judgment, asserting that MM was not entitled to appear by either party's signature and a seal was invoke the renewal statute because service of the not otherwise affixed to the instrument. Koncal complaint was never perfected in the prior action, Enterprises v. Fleet Finance, 279 Ga. App. 39, 41 and MM's claims were barred by the six-year (1) (a) ( 630 SE2d 567) (2006) (contract not under statute of limitation in OCGA $ 9-3-24. After the seal where it contained recital of intent to use seal trial court denied Perkins and National Gunite's but bore no sealj. By contrast, the five subsequent motion, Perkins filed a second motion for amendments to the Agreement constitute contracts summary judgment on statute of limitation under seal because they contain the requisite grounds, further challenging the sufficiency of recital and "SEAL" is printed by the parties' 12 service in *772 the prior action." In response to a signatures. Georgia Receivables v. Maddox, 216 request by the trial court for supplemental briefs, Ga. App. 164 (1) ( 454 SE2d 541) (1995). MM submitted two supplemental briefs asserting In answering the dispositive question of whether that the amendments to the Agreement rendered the amendments altered the status of the initial the Agreement a contract under seal subject to the Agreement and rendered it a contract under seal, 20-year limitation period in OCGA $ 9-3-23. MM we are guided by the applicable rules of contract also filed an Amended Complaint dropping its construction. "The cardinal rule of construction is claim for breach of Perkins' separate warranty and to ascertain the intent of the parties." (Citation alleging that the "present case is an original action omitted) DIL, Inc. v. Carson, 284 Ga App. 898, that stands independently of the previous action 904 (1)(c) ( 645 SE2d 56) (2007) (applying rules arising from the same set of facts" and was timely of contract construction to interpret lease and filed under OCGA $ 9-3-23. The trial court denied amendments). "Where the contract terms are clearand unambiguous, the court will look to that alone validity of their respective obligations in the to find the true intent of the parties." (Citation Agreement, an instrument never placed under seal. omitted.) Southern Fed S L Asen. c. v. Lyle, 249 The ratification clause is consistent with and Ga. 284,287 (1) -773 ( 290 SE2d 455) (1982) confirms the general principle of contract law that Unambiguous language "must be afforded its a contract modification, such as the amendments, literal meaning and plain ordinary words given "introduces new elements into the details [of a their usual significance. . . . "(Citations omitted.) contract], or cancels some of them, but leaves the Wolverine Ins. Co. v. Jack Jordan, Inc., 213 Ga. general purpose and effect of the subject-matter of 249, 302 ( 99 SE2d 95) (1957). a contract intact." " Adlaura Integrity Arg. u. Ben Significantly, each amendment indicates on its Hill Weired Methodist Church, 286 Ga App. 795, 799, n. 5 ( 650 SE2d 359) (2007), citing Evans v face that its purpose is confined to altering the closing date for the parties' transaction. The Henson, 73 Ga. App. 494 (2) ( 37 SE2 164) (1946). We see no basis to infer that the prefatory language in each amendment states that ratification clause was meant to elevate the status the parties "intend to extend the Closing Date as of the Agreement to a contract under seal. If the more particularly set forth herein," and Section 2 parties desired to alter the status of their deletes the existing closing date and substitutes a Agreement in that manner, they could have new one in its place. The plain language of the amendments nowhere reflects an intent by the expressly incorporated the prior Agreement by reference and stated their intention to place it parties to convert their existing Agreement into a contract under seal. The trial court concluded under seal along with the amendments. On the otherwise, relying on Section 3 of the face of the amendments as executed, we cannot amendments, which provides: "Except as herein 174 #714 conclude that they converted the Agreement into a contract under seal. amended, the Agreement remains in full force and effect and Seller and Purchaser hereby ratify and Our decision in Lowbermen's Mut Cas. Co. v. confirm the Agreement as herein amended." The Paullo Consor. Co., 172 Ga. App. 452 ( 323 SE2d trial court found that this ratification clause 649) (1984) (physical precedent only), rev'd in "modifies the original contract to be under seal as part, 254 Ga. 461 ( 330 SE2d 344) (1985), upon well." We disagree which MM relies, does not require a different To "ratify" means "[tjo approve and give formal result. Parillo, even if it were more than physical sanction to; confirm." (The American Heritage precedent, is distinguishable. In Panllo, Lumbermen's, as subcogee to its insured, sued College Dictionary (4th ed. 2004) at 1156; see also Patillo for damages to a building Patillo Black's Law Dictionary (8th ed.) at 1289 constructed for the insured, asserting breach of ("Ratification" denotes "[confirmation and contract and fort theories. Id. at 452. The original acceptance of a previous act, thereby making the contract between Patillo and the insured was not act valid from the moment it was done ") To under seal. Id at 453 (1). A subsequent "confirm" means, among other things, "[ijo amendment to the contract contained a recital of support or establish the certainty or validity of; intent to use a seal; however, the word "seal" was verify." The American Heritage College Dictionary at 300; see also Black's Law Dictionary printed by the insured's name but not Patillo's. Id. Accordingly, we concluded that the parties' at 318 (definitions of "confirm" include "[tjo verify or corroborate ). Applying these contract was not a sealed instrument as to Patillo, and the 20-year statute of limitation under OCGA definitions, we conclude that, by including a ratification clause in the amendments, MM and $ 9-3-23 was inapplicable. Id. In Panilo, we had Perkins simply acknowledged the continuing no cause to determine whether the language of theamendment at issue would permit us to conclude MM never disputed Perkins' argument below that that the parties intended to elevate the status of its claim for breach of the Agreement is governed their initial agreement. In the absence of the word by the general rule that a cause of action for "seal" by Patillo's signature, the amendment was breach of a construction contract accrues upon the not under seal as to Patillo, and, necessarily, could project's substantial completion, which, in this not convert the initial agreement into a contract case, was February 18, 2000, the date a final under seal. We do not read Parillo as holding that certificate of occupancy was issued. See Bauer v. in any case in which contracting parties enter into Weeks, 267 Ga. App. 617, 618 ( 600 SE2d 700) a sealed amendment to an unsealed agreement, the (2004); Gropper v. STO Corp., 250 Ga. App. 820, initial agreement becomes a sealed instrument as 823 (2) ( 552 SE2d 118) (2001). Given this well. The language in the amendments here accrual date, MM's March 5, 2007 suit was not compels us to reach a contrary conclusion. timely under the applicable six-year statute of 3 The Supreme Court of Georgia reversed limitation in OCGA $ 9-3-24. Accordingly, the our decision in Patillo insofar as it trial court should have granted Perkins' second affirmed the grant of summary judgment in 775 motion for summary judgment. *775 Patillo's favor on Lumbermen's tort claim For the reasons set forth above, the trial court's for damages to the building based on order denying Perkins' second motion for negligent design and construction, holding summary judgment is reversed. the discovery rule applied to the statute of limitation in OCGA $ 9-3-30 and issues of Judgment reversed. Johnson, P. J., and Phipps, J., fact existed regarding the date the owner concur knew or should have known of Patillo's alleged negligence. Parillo, supra, 254 Ga. MILLER, Chief Judge. at 465. The Supreme Court later overruled its decision in Patilla. Corporation of DECIDED APRIL 15, 2010. Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365 ( 368 SE2d 732) (1988)